A-14295, MARCH 13, 1928, 7 COMP. GEN. 559

A-14295: Mar 13, 1928

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AUTHORIZES THE ALLOWANCE OF INTEREST TO DATE OF RENDITION OF JUDGMENT OR TO DATE OF ENTRY OF FINAL JUDGMENT IN THE EVENT SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT. SAID SECTION DOES NOT AUTHORIZE THE PAYMENT OF INTEREST FOR THE PERIOD BETWEEN THE DATE OF JUDGMENT AND THE DATE WRIT OF CERTIORARI GRANTED WAS DISMISSED ON MOTION OF THE PETITIONER. FOR WHICH JUDGMENT WAS ENTERED IN UNITED CIGAR STORES COMPANY V. WAS DISMISSED ON MOTION OF THE SOLICITOR GENERAL OF THE UNITED STATES. THERE IS NO DISPUTE AS TO THE FACTS. OR FOR ANY SUM WHICH WAS EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED. IF SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT. IT WAS CONTENDED BY THE ATTORNEYS IN THE PRESENT CASE.

A-14295, MARCH 13, 1928, 7 COMP. GEN. 559

JUDGMENTS - INTERNAL REVENUE - INTEREST WHILE SECTION 1117 (B) OF THE ACT OF FEBRUARY 26, 1926, 44 STAT. 120, AUTHORIZES THE ALLOWANCE OF INTEREST TO DATE OF RENDITION OF JUDGMENT OR TO DATE OF ENTRY OF FINAL JUDGMENT IN THE EVENT SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT, SAID SECTION DOES NOT AUTHORIZE THE PAYMENT OF INTEREST FOR THE PERIOD BETWEEN THE DATE OF JUDGMENT AND THE DATE WRIT OF CERTIORARI GRANTED WAS DISMISSED ON MOTION OF THE PETITIONER.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 13, 1928:

THE UNITED CIGAR STORES OF AMERICA, BY THEIR ATTORNEYS, REQUESTED FEBRUARY 1, 1928, REVIEW OF SETTLEMENT NO. 017863, DATED JANUARY 14, 1928, DISALLOWING ITS CLAIM UNDER SECTION 1117 (B) OF THE ACT OF FEBRUARY 26, 1926, 44 STAT. 120, FOR INTEREST AT THE RATE OF 6 PERCENT PER ANNUM ON THE PRINCIPAL SUM OF $220,177.18, FOR WHICH JUDGMENT WAS ENTERED IN UNITED CIGAR STORES COMPANY V. UNITED STATES, CT.CLS. NO. C 43, FROM APRIL 26, 1926, DATE OF JUDGMENT, TO NOVEMBER 14, 1927, DATE OF FINAL ORDER OF THE COURT OF CLAIMS ENTERED AFTER A PETITION FOR CERTIORARI, WHICH HAD BEEN GRANTED BY THE SUPREME COURT OF THE UNITED STATES, WAS DISMISSED ON MOTION OF THE SOLICITOR GENERAL OF THE UNITED STATES.

THERE IS NO DISPUTE AS TO THE FACTS. SECTION 1117 (B) OF THE ACT OF FEBRUARY 26, 1926, SUPRA, PROVIDED THAT:

IN ANY JUDGMENT OF ANY COURT RENDERED AFTER THE ENACTMENT OF THE REVENUE ACT OF 1926 * * * FOR ANY INTERNAL-REVENUE TAX ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED, OR FOR ANY PENALTY COLLECTED WITHOUT AUTHORITY, OR FOR ANY SUM WHICH WAS EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED, UNDER THE INTERNAL-REVENUE LAWS, INTEREST SHALL BE ALLOWED AT THE RATE OF 6 PERCENTUM PER ANNUM UPON THE AMOUNT OF SUCH TAX, PENALTY, OR SUM, FROM THE DATE OF THE PAYMENT OR COLLECTION THEREOF TO THE DATE OF ENTRY OF SUCH JUDGMENT, OR, IF SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT, TO THE DATE OF ENTRY OF FINAL JUDGMENT.

UNDER SECTION 242 OF THE ACT OF MARCH 3, 1911, 36 STAT. 1157, A FINAL JUDGMENT OF THE COURT OF CLAIMS COULD BE APPEALED TO THE SUPREME COURT OF THE UNITED STATES BY THE GOVERNMENT IN ANY CASE AND BY THE CLAIMANT IN EVENT THE AMOUNT IN CONTROVERSY EXCEEDED $3,000 OR HAD BEEN ADJUDGED FORFEITED TO THE UNITED STATES. SECTION 3 (B) AND (E) OF THE ACT OF FEBRUARY 13, 1925, 43 STAT. 939, SUBSTITUTED THE WRIT OF CERTIORARI FOR APPEALS IN LANGUAGE AS FOLLOWS:

SEC. 3. * * *

(B) IN ANY CASE IN THE COURT OF CLAIMS, INCLUDING THOSE BEGUN UNDER SECTION 180 OF THE JUDICIAL CODE, IT SHALL BE COMPETENT FOR THE SUPREME COURT, UPON THE PETITION OF EITHER PARTY, WHETHER GOVERNMENT OR CLAIMANT, TO REQUIRE, BY CERTIORARI, THAT THE CAUSE, INCLUDING THE FINDINGS OF FACT AND THE JUDGMENT OR DECREE, BUT OMITTING THE EVIDENCE, BE CERTIFIED TO IT FOR REVIEW AND DETERMINATION WITH THE SAME POWER AND AUTHORITY, AND WITH LIKE EFFECT, AS IF THE CAUSE HAS BEEN BROUGHT THERE BY APPEAL.

(C) ALL JUDGMENTS AND DECREES OF THE COURT OF CLAIMS SHALL BE SUBJECT TO REVIEW BY THE SUPREME COURT AS PROVIDED IN THIS SECTION, AND NOT OTHERWISE.

THIS OFFICE HAD DECIDED IN 7 COMP. GEN. 128, THAT SECTION 1117 (B) OF THE ACT OF FEBRUARY 26, 1926, SUPRA, DID NOT AUTHORIZE THE PAYMENT OF INTEREST ON A JUDGMENT OF THE COURT OF CLAIMS DURING THE INTERIM BETWEEN THE DATE OF JUDGMENT AND THE DATE THE SUPREME COURT OF THE UNITED STATES REFUSED TO GRANT THE GOVERNMENT A WRIT OF CERTIORARI TO REVIEW THE SAME. HOWEVER, IT WAS CONTENDED BY THE ATTORNEYS IN THE PRESENT CASE, BOTH IN WRITTEN BRIEF AND ORAL ARGUMENT (1) THAT SAID DECISION IS IN ERROR IN THAT THE MENTAL PROCESSES OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES IN CONSIDERING THE PETITION FOR CERTIORARI AND THE BRIEFS OF PETITIONING AND OPPOSING COUNSEL, CONSTITUTED A "REVIEW" OF THE JUDGMENT WITHIN THE REQUIREMENTS OF SECTION 1117 (B) OF THE ACT OF FEBRUARY 26, 1926, AND (2) THAT IN ANY EVENT THE DECISION IN 7 COMP. GEN. 128 IS NOT CONTROLLING FOR THE PETITION WAS GRANTED IN THIS CASE, THE WRIT ISSUED, AND THEN DISMISSED ON MOTION OF THE UNITED STATES.

THE ARGUMENT UNDER THE FIRST POINT OVERLOOKS THE FACT THAT BY THE EXPRESS TERMS OF THE ACT OF FEBRUARY 13, 1925, SUPRA, JUDGMENTS OF THE COURT OF CLAIMS MAY BE REQUIRED BY THE SUPREME COURT OF THE UNITED STATES "TO BE CERTIFIED TO IT FOR REVIEW AND DETERMINATION * * * AS IF THE CAUSE HAD BEEN BROUGHT THERE BY APPEAL.' UNDER SECTION 242 OF THE ACT OF MARCH 3, 1911, AN APPEAL WAS ALLOWED BY THE COURT OF CLAIMS, AND THIS INVOLVED NO CONSIDERATION WHATEVER ON THE PART OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES. ACASE APPEALED WAS NOT REVIEWED UPON THE FILING OF THE APPEAL; NEITHER IS A CASE REVIEWED WHEN AN APPLICATION IS MADE FOR A WRIT OF CERTIORARI; THE GRANTING OR DENIAL OF THE WRIT IS NOTHING MORE THAN A GRANTING OR DENIAL OF THE PETITION OF THE MOVING PARTY THAT THE SUPREME COURT "REQUIRE" THE FINDINGS OF FACT AND THE JUDGMENT "BE CERTIFIED TO IT FOR REVIEW AND DETERMINATION.' IN OTHER WORDS, THE CERTIFICATION COMES FIRST AND THE REVIEW AND DETERMINATION AFTERWARDS. THERE ARE TWO PROCESSES EACH COMPLETE IN ITSELF. THE PETITION FOR WRIT OF CERTIORARI AND ITS GRANTING OR REFUSAL REST UPON REASONS WHY IT IS BELIEVED BY COUNSEL THE CASE ITSELF SHOULD BE CONSIDERED BY THE COURT, AND THOSE REASONS AND NOT THE CASE ITSELF AND THE JUDGMENT THEREIN AS SUCH ARE ACTED UPON IN GRANTING OR REFUSING THE WRIT. IF THE WRIT IS GRANTED AS IN THE INSTANT CASE, THEN FIRST COMES BEFORE THE COURT THE CONSIDERATION OF THE CASE ITSELF AND THE JUDGMENT THEREIN. HERE THE FIRST STEP WAS TAKEN, BUT THE SECOND ONE WAS NOT COMPLETED, FOR THE CASE WAS DISMISSED BY THE PETITIONER BEFORE THE JUDGMENT OF THE COURT OF CLAIMS WAS REACHED FOR "REVIEW AND DETERMINATION," AND THERE HAS BEEN NO "ENTRY OF FINAL JUDGMENT" AS THE RESULT OF A REVIEW BY "AN APPELLATE COURT.' THE FINAL JUDGMENT SUBMITTED HERE FOR PAYMENT WAS THAT ENTERED MAY 17, 1926, BY THE COURT OF CLAIMS "AS OF APRIL 26TH, 1926," FOR "THE SUM OF TWO HUNDRED AND NINETY-SIX THOUSAND FOUR HUNDRED AND SIXTY-THREE DOLLARS AND TWENTY-NINE CENTS ($296,463.29)" AND THAT JUDGMENT WAS PAID IN THE SETTLEMENT UNDER REVIEW.

IT IS UNNECESSARY FOR THIS OFFICE TO DETERMINE, AS URGED BY THE ATTORNEYS FOR CLAIMANT, WHAT LEGAL TERM MAY BE APPLIED TO THE MENTAL PROCESSES OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES IN CONSIDERING, DENYING, OR GRANTING A PETITION FOR A WRIT OF CERTIORARI, FOR IT APPEARS CLEAR THAT THE "REVIEW" OF THE JUDGMENT WITHIN THE REQUIREMENTS OF SECTION 1117 (B) OF THE ACT OF FEBRUARY 26, 1926, IS ONE THAT TAKES PLACE AFTER THE SUPREME COURT HAS REQUIRED THE FINDINGS OF FACT AND THE JUDGMENT OF THE COURT OF CLAIMS TO BE CERTIFIED TO IT AND THAT THIS ,REVIEW AND DETERMINATION" DID NOT TAKE PLACE IN THIS CASE BECAUSE THE PETITION WAS DISMISSED BEFORE SUCH REVIEW WAS HAD.

WHAT HAS BEEN SAID WITH RESPECT TO THE APPLICABILITY OF THE CONCLUSIONS REACHED IN 7 COMP. GEN. 128 IS SUFFICIENT TO DISPOSE OF THE SECOND CONTENTION MADE BY THE ATTORNEYS FOR CLAIMANT, WHO ADMIT THAT THEY HAVE BEEN UNABLE TO LOCATE A DECISION OF THE COURTS HOLDING THAT THE CONSIDERATION GIVEN BY AN APPELLATE COURT TO THE GRANTING OR REFUSAL OF A PETITION FOR CERTIORARI TO REQUIRE A JUDGMENT TO BE CERTIFIED "FOR REVIEW AND DETERMINATION" CONSTITUTED THE REVIEW SUCH AS WOULD JUSTIFY THE ENTERING OF FINAL JUDGMENT THEREON. ALSO,AS HERETOFORE STATED, THERE HAS BEEN NO ENTRY OF A JUDGMENT PURSUANT TO THE ORDER DISMISSING THE WRIT OF CERTIORARI, AND THE JUDGMENT PRESENTED HERE FOR SETTLEMENT WAS THE ONE ENTERED BY THE COURT OF CLAIMS BEFORE THESE PROCEEDINGS WERE HAD IN THE CASE.

UPON FURTHER CONSIDERATION OF THE MATTER, THE ACTION HERETOFORE TAKEN IN DISALLOWING THE CLAIM MUST BE AND IS SUSTAINED.